Saint John's Health Center

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 2078 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 170
2078
Saint John’s Health Center and California Nurses’
Association National Nurses Organizing Com-
mittee. Cases 31–CA–029005 and 31–CA–029315
December 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On June 16, 2010, Administrative Law Judge John J.
McCarrick issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charging
Party and the Acting General Counsel filed answering
briefs. The Charging Party and the Acting General
Counsel filed cross-exceptions and supporting briefs, and
the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to adopt in part, as modified be-
low, and reverse in part the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order as
modified and set forth in full below.2
Saint John’s Health Center (the Respondent) is an
acute care hospital located in Santa Monica, California.
Since 2008, the California Nurses Association/National
Nurses Organizing Committee (Charging Party or Union)
has been engaged in an organizing campaign to represent
the Respondent’s registered nurses (RNs).
I. BAN ON UNION RIBBON
In November 2008, union organizers gave RNs rib-
bons stating, “Saint John’s RNs for Safe Patient Care.”
On November 7, 2008, Steven Sharrer, Saint John’s vice
president of human resources, emailed the Respondent’s
nursing directors and asked them to inform employees
who were wearing the ribbons that they “may not wear
them in immediate patient care areas.” Sharrer explained
that he banned the ribbons because he was concerned that
the ribbons were “detrimental and disruptive to patient
care.” On November 20 or 21, 2008, the director of labor
and delivery, Irena Zuanic, told four RNs that they were

1 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) of the Act by: (1) interrogating employees about
their union or other protected concerted activities; (2) threatening em-
ployees with discipline for engaging in union or other protected con-
certed activities; (3) threatening to call police on employees and have
employees arrested for engaging in union or other protected concerted
activities; and (4) creating the impression that employees’ union activi-
ties were under surveillance.
2 We have modified the recommended Order and notice to conform
to the violations found and to provide for the posting of the notice in
accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons
stated in his dissenting opinion in J. Picini Flooring, Member Hayes
would not require electronic distribution of the notice.
not allowed to wear the ribbons in immediate patient care
areas. She also told them that they would be written up
for insubordination if they continued to wear the ribbons.
Before and after the ban in November 2008, the Re-
spondent allowed RNs to wear a variety of insignia on
their uniforms including union buttons and political but-
tons. Employees were permitted to wear union buttons
in immediate patient care areas, including one stating,
“Respect and Dignity,” and another stating, “Saint John’s
Nurses—the Heart of Healthcare.” In addition, the Re-
spondent issued a ribbon to RNs that said “Saint John’s
mission is patient safe care.” The Respondent permitted
employees to wear this ribbon in all areas of the hospital
including immediate patient care areas.
The judge found that the ban, which was limited to
immediate patient care areas, was presumptively valid,
but found nevertheless that the Respondent violated Sec-
tion 8(a)(1) of the Act because the ban was discriminato-
rily enforced. The Acting General Counsel and Charging
Party except to the judge’s finding that the ban was pre-
sumptively valid. The Respondent excepts to the judge’s
finding that the ban was discriminatorily enforced in vio-
lation of Section 8(a)(1). We agree that the judge erred
by finding that the Respondent’s ban was presumptively
valid, and we therefore do not reach the judge’s alterna-
tive finding that the ban was discriminatorily enforced.
It is well established that employees have a protected
right to wear union insignia at work in the absence of
“special circumstances.” See London Memorial Hospi-
tal, 238 NLRB 704, 708 (1978); Ohio Masonic Home,
205 NLRB 357 (1973), enfd. 511 F.2d 27 (5th Cir.
1975); see also Republic Aviation Corp. v. NLRB, 324
U.S. 793, 801–803 (1945). In healthcare facilities, how-
ever, restrictions on wearing insignia in immediate pa-
tient care areas are presumptively valid, while re-
strictions on insignia in other areas of a hospital are pre-
sumptively invalid. Casa San Miguel, 320 NLRB 534,
540 (1995); see also NLRB v. Baptist Hospital, 442 U.S.
773, 781 (1979). Here, the judge found that the ban on
union insignia was presumptively valid because the Re-
spondent banned the ribbons only in immediate patient
care areas. The judge also found that the absence of evi-
dence regarding patient complaints or inquiry into patient
disruption was insufficient to overcome the presumption
of validity. We disagree.
The Board, with court approval, has created a pre-
sumption that protects an employer from liability if the
employer bans solicitation or the wearing of insignia in
immediate patient care areas. NLRB v. Baptist Hospital,
supra. The basis of the presumption is that such solicita-
tions or insignia “might be unsettling to patients—
particularly those who are seriously ill and thus need
ST. JOHN’S HEALTH CENTER

2079
quiet and peace of mind.” St. John’s Hospital, 222
NLRB 1150, 1150 (1972). Although this presumption
protects a healthcare facility’s ban on all nonofficial in-
signia in immediate patient care areas, it does not protect
a selective ban on only certain union insignia.3 In the
latter type of case, the burden is on the hospital to show
that the selective ban is “necessary to avoid disruption of
health-care operations or disturbance of patients.” Beth
Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).4
Thus, for example, in Casa San Miguel, 320 NLRB 534,
540 (1995), the judge, in a decision adopted by the
Board, applied the presumption to dismiss a charge based
on a nursing facility’s order that a nurse remove a uni-
form bearing a union message in patient care areas after
finding that there was no “contention or evidence that
while prohibiting its employees from wearing uniforms
with a prounion emblem or message printed on the front
of the uniform, Respondent permitted the employees to
wear uniforms on which other kinds of emblems or mes-
sages were printed.”5 See also Mt. Clemens Medical
Center, 335 NLRB 48 (2001).6 Here, the Respondent

3 The dissent suggests that an employer is privileged to ban union in-
signia in patient care areas while allowing all other insignia, both offi-
cial and unofficial. However, the dissent’s citation to Baptist Hospital,
442 U.S. 773 (1979), Beth Israel Hospital v. NLRB, 437 U.S. 483
(1978), and St. John’s Hospital, 222 NLRB 1150 (1976), to support this
analysis is misplaced because, in each of the cited cases, the Board
found that a rule banning all solicitation in patient care areas was pre-
sumptively valid. The dissent’s extension of the jurisprudence to grant
a presumption of validity to an employer who bans only union insignia
in patient care areas is not only contrary to the case law, it is contrary to
the purposes of the Act. Contrary to the dissent’s suggestion, nothing
in our holding indicates that such a “broader restriction of Section 7
activity is presumptively lawful.”
4 The dissent suggests that all union insignia are potentially disrup-
tive, but then takes the position that a hospital may selectively ban only
certain union insignia because the “narrower restriction focusing on one
or more insignia deemed to have a particularly disruptive potential”
serves the same purpose as a general ban. The flaw in the analysis is
that here, because the Respondent allows other insignia in patient care
areas, including other union insignia, the Respondent’s ban on the
union button at issue is not entitled to the presumption of validity. The
Respondent has conceded by its action that not all union insignia are
potentially disruptive and thus, even under the dissent’s view of the
law, that it must justify the specific ban at issue. That is, without the
presumption, the Respondent must show that banning the particular
button was “necessary to avoid disruption of health-care operations or
disturbance of patients.”
5 The dissent correctly points out that in Casa San Miguel, the judge
and the Board upheld the ban. But the case is nevertheless instructive
because the holding was premised on the finding that, unlike in this
case, the ban extended to all unofficial insignia.
6 The judge and our dissenting colleague dismiss Mt. Clemens on the
grounds that the decision’s application of the special circumstances test
to immediate patient care areas is unnecessary dicta. We disagree.
After finding that the hospital’s ban on union buttons was overly broad
because it applied outside immediate patient care areas, the judge in Mt.
Clemens found that the hospital’s ban violated Sec. 8(a)(1) even as
banned the Union’s ribbon stating, “Saint John’s RNs for
Safe Patient Care,” but allowed employees to wear a
hospital endorsed ribbon that was almost identical to the
one issued by the Union. In addition, the Respondent
allowed other union insignia and political buttons to be
worn throughout the hospital including in immediate
patient care areas. Having allowed other types of insig-
nia to be worn in immediate patient care areas, the Re-
spondent may not now rely on the protection of the pre-
sumption of validity applicable to an across-the-board
ban to justify its selective ban of only the specific union
insignia at issue. Under the circumstances presented
here, we find that the Respondent’s ban on the Union’s
ribbon is not protected by the presumption of validity.7
We turn now to whether the Respondent nevertheless
was justified in banning the union ribbon because of spe-
cial circumstances. The Board will find special circum-
stances in a healthcare setting where the restriction is
“necessary to avoid disruption of health-care operations
or disturbance of patients.” Beth Israel Hospital v.
NLRB, 437 U.S. 483, 507 (1978). The Respondent argues
that the ban was necessary because the ribbon was part of
a larger campaign by the Union to show that patient care
at the Hospital is not safe. The Respondent argues that it
is permitted to ban any insignia that it reasonably be-
lieves may disturb patients. The Respondent, however,
presented no evidence to support a reasonable belief that
the ban was necessary to “avoid disruption of health-care
operations or disturbance of patients.” The Respondent’s
justification is based on the Union’s campaign, but the
Respondent presented no evidence that patients were
aware of the campaign such that the ribbon was likely to
disturb patients or otherwise disrupt healthcare opera-
tions. The Respondent’s asserted justification is further
weakened by the fact that the Respondent itself distribut-
ed a virtually identical ribbon and allowed nurses to wear
it in immediate patient care areas. There is nothing in the
record that indicates that patients would be any more
concerned about the quality of patient care after seeing
the Union’s ribbon that said, “Saint John’s RN’s for safe
patient care,” than they would be by the Respondent’s
ribbon that said, “Saint John’s mission is patient safe

applied to union buttons inside immediate patient care areas. In doing
so, the judge found that the ban was not presumptively valid because
the hospital allowed employees to wear other insignia in immediate
patient care areas and that the hospital failed to show special circum-
stances. Id. at 50. The Board adopted the judge’s finding that the ban
was invalid as applied to immediate patient care areas. Id. at 48 fn. 2.
7 Contrary to the dissent’s suggestion, nothing in our holding pre-
vents a hospital from imposing a categorical ban on unofficial insignia
in patient care areas despite previously allowing such insignia, so long
as the ban is not imposed in response to protected activity. But that is
not what is at issue here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2080
care.”8 We see no difference between the two messages
as they would be perceived by a patient.9 Accordingly,
we find that the Respondent has not presented evidence
sufficient to show that special circumstances justified the
ban on the Union’s ribbon, and thus, the Respondent
violated Section 8(a)(1).10
II. OFF-DUTY EMPLOYEE ACCESS RULE
The judge found that the Respondent violated Section
8(a)(1) of the Act by promulgating an off-duty employee
access policy without clearly disseminating the policy to
all employees and by enforcing the invalid policy against
two employees. The Charging Party excepts to the
judge’s failure to find that the off-duty access policy also

8 The dissent would find that the Respondent met its burden to show
that special circumstances existed. In support, the dissent argues that
the banned button demanded safe patient care while the Respondent’s
button merely proclaimed that safe patient care was the mission of the
hospital. In fact, no such demand was made on the banned button and
no such difference existed. Similarly, the dissent repeatedly argues that
the banned button was “critical of patient care” while the Respondent’s
button sent the opposite message. However, nothing in the language on
the two buttons supports that distinction and the Respondent presented
no evidence to support an argument that patients would make such a
distinction. In fact, the language on the two buttons was nearly identi-
cal.
9 In Sacred Heart Medical Center, 347 NLRB 531, 534 (2006), a
majority of the Board deferred to the hospital administrators’ judgment
that a proscribed message was more likely to disturb patients than a
permitted message, but the Ninth Circuit reversed on the grounds that
the deference accorded the administrators’ judgment in the absence of
any evidence of adverse effects was inconsistent with prior Board prec-
edent holding that “special circumstances justifying a restriction on
union insignia must be established by substantial evidence in the rec-
ord.” Washington State Nurses Assn. v. NLRB, 526 F.3d 577, 583 (9th
Cir. 2008). While Sacred Heart is thus of questionable continued via-
bility, it is nevertheless distinguishable here because in Sacred Heart
the Board concluded that the “respondent has reasonably determined
that one union button is distinguishable from another and is not as
likely to disturb patients or their families.” 347 NLRB at 534. Here,
where the proscribed ribbon read, “Saint John’s RNs for Safe Patient
Care” and the permitted ribbon read “Saint John’s mission is patient
safe care,” contrary to our dissenting colleague, we conclude that the
distinction is not reasonable, but more akin to the examples of unrea-
sonable distinctions described in footnote 12 of the Sacred Heart deci-
sion, for example, “prohibiting yellow union ribbon while allowing red
and green ribbons not related to union.” Id. at 533 fn. 12 (citing Hol-
laday Park Hospital, 262 NLRB 278, 279 (1982)). Permitting a ribbon
so similar to the proscribed ribbon here simply belies Respondent’s
concern about patient care and thus undermines the special circum-
stances it claims justify the challenged proscription.
10 Having found that the ban was not presumptively valid and that
the Respondent did not show special circumstances to justify its ban,
we do not reach the judge’s alternative finding that the ban was dis-
criminatorily enforced.
We do, however, adopt the judge’s finding that supervisor Zuanic’s
November 20, 2008 threat to enforce the rule violates Sec. 8(a)(1).
violated the Act because it did not apply to off-duty em-
ployees’ access for all purposes.11
The Respondent had a policy, effective June 2003, that
addressed employee solicitation and distribution, but did
not address off-duty access. The Respondent also had a
handbook that stated, “[t]he access of employees to the
interior of Saint John’s premises and to working areas of
the exterior of the premise while not on duty shall be
permitted only for the purpose of visiting a patient.” In
January 2009, the Respondent revised its solicitation and
distribution policy. The new policy, Solicitation and
Distribution Policy 830.08, states:

Off-duty employees are not allowed access to the inte-
rior of the Health Center’s building or to other working
areas at the Health Center. Off-duty employees are
permitted access to the cafeteria and are also permitted
access to the building to attend Health center sponsored
events, such as retirement parties and baby showers.
Employees are expected to arrive at their work area at
or shortly before the beginning of their scheduled shift,
and are expected to leave their work area promptly af-
ter completing their shift.

The above policy was posted on the Respondent’s
shared intranet at some point in May 2009 and was
emailed to employees on May 21, 2009. In March 2009,
Vice President for Human Resources Sharrer told a hos-
pital security supervisor that off-duty employees should
not be in the hospital. Historically, off-duty employees
were permitted on the premises for a variety of reasons,
including collecting personal belongings, picking up
items ordered from other nurses, checking the schedule,
attending baby showers and birthday parties, and visiting
with friends and coworkers. On May 14, the new access
policy was enforced against off-duty employees who
were on the premises to campaign for the Union. On
May 15, the policy was enforced against an employee
who was on the premises to retrieve his wallet. There is
no evidence that, prior to May 14, 2009, any employees
were told that they could not be in the hospital if they
were off duty.
In Tri-County Medical Center, 222 NLRB 1089, 1089
(1976), the Board established that an employer’s rule
barring off-duty employees from access to its facility is
valid only if it:

11 No exceptions were filed to the judge’s findings that the Respond-
ent’s no-access policy violated Sec. 8(a)(1) because it was not properly
disseminated and that the Respondent also violated Sec. 8(a)(1) by
enforcing the policy against off-duty employees on May 14 and 15,
2009.
ST. JOHN’S HEALTH CENTER

2081
(1) limits access solely with respect to the interior of
the plant and other working areas; (2) is clearly dissem-
inated to all employees; and (3) applies to off duty em-
ployees seeking access to the plant for any purpose and
not just to those employees engaging in union activity.

222 NLRB at 1089. See also TeleTech Holdings, Inc., 333
NLRB 402, 404 (2001); Nashville Plastic Products, 313
NLRB 462, 463 (1993); Fairfax Hospital, 310 NLRB 299,
308–309 (1993), enfd. mem. 14 F.3d 594 (4th Cir. 1993),
cert. denied 512 U.S 1205 (1994).
The judge found that Solicitation and Distribution Pol-
icy 830.08 met the first prong of Tri-County because it
was limited to the interior of the hospital and other work-
ing areas. The judge found, however, that the policy did
not meet prong two because it was not clearly dissemi-
nated until May 21—after it was enforced against two
employees. The judge did not reach the issue of whether
the policy also violated the prong three of Tri-County.
Therefore, the judge’s order did not require the Respond-
ent to rescind the policy but merely required the Re-
spondent not to enforce the policy without providing
notice to the employees. The Charging Party argues that
the rule violates prong three because it does not prohibit
access for all purposes.
We find merit in the Charging Party’s exception. The
law governing employees’ off-duty access to their em-
ployer’s property is grounded in the Supreme Court’s
landmark decision in Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945). There, the Court upheld the
Board’s ruling that the employer’s rule prohibiting solici-
tation in the plant at any time “entirely deprived [em-
ployees] of their normal right to ‘full freedom of associa-
tion’ in the plant on their own time, the very time and
place uniquely appropriate and almost solely available to
them therefor.”12 The Court recognized that “time out-
side working hours, whether before or after work, or dur-
ing luncheon or rest periods, is an employee’s time to use
as he wishes without unreasonable restraint, although the
employee is on company property.”13 A rule prohibiting

12 Id. at 801 fn. 6 (internal quotation marks omitted).
13 Id. at 803 fn. 10 (quoting Peyton Packing Co., 49 NLRB 828, 843
(1943)). Arguing that the principles of Republic Aviation do not apply
to the instant case, our dissenting colleague states that the Court “did
not resolve the access rights of off-duty employees,” but rather the
rights of “on-duty employees.” That statement is obviously incon-
sistent with the words of the Court itself that are quoted in the accom-
panying text.
By contrast, the dissent’s reliance on NLRB v. Steelworkers (Nu
Tone, Inc.), 357 U.S. 357 (1958), is indeed misplaced. The “very nar-
row and almost abstract question” in Nu Tone was whether, “when the
employer himself engages in anti-union solicitation that if engaged in
by employees would constitute a violation of the rule[,] his enforce-
ment of an otherwise valid no-solicitation rule against the employees is
solicitation “outside of working hours, although on com-
pany property,” the Court held, is therefore presumptive-
ly unlawful absent “special circumstances [that] make the
rule necessary in order to maintain production or disci-
pline.”14 Subsequently, applying Republic Aviation in
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the Court
noted that “the plant is a particularly appropriate place
for the distribution of § 7 material, because it ‘is the one
place where [employees] clearly share common interests
and where they traditionally seek to persuade fellow
workers in matters affecting their union organizational
life and other matters related to their status as employ-
ees.’”15
The test that the Board adopted in Tri-County regard-
ing employees’ off-duty access to their employer’s prop-
erty follows from the principles set forth in Republic
Aviation and Eastex.16 Given the centrality of employ-
ees’ right to communicate with their fellow employees at
their workplace on their own time and the “particularly
appropriate” nature of the workplace for exercising that
right, a rule prohibiting employees from being present at
their workplace on their own time clearly trenches on
their exercise of that fundamental right.17 On the other
hand, the employer has a private property interest in con-
trolling access to its premises; it is the Board’s job to
weigh this interest against the employees’ Section 7 right
“‘and to seek a proper accommodation between the
two.’”18 The three requirements of the Tri-County test
effectuate the Board’s duty to accommodate these com-
peting interests in keeping with the principles of Repub-
lic Aviation. The first requirement for a no-off-duty-
access rule to be valid—that the rule limit access solely

itself an unfair labor practice.” Id. at 362. There is no allegation in the
instant case that the Respondent engaged in antiunion solicitation, nor
is such employer conduct an element of the Tri-County standard.
14 Id. at 803–804 fn. 10 (quoting Peyton Packing Co., 49 NLRB at
843–844).
15 Id. at 574, quoting Gale Products, 142 NLRB 1246, 1249 (1963).
16 See ITT Industries v. NLRB, 413 F.3d 64, 68 (D.C. Cir. 2005)
(“The NLRB’s Tri-County balancing test followed from Republic Avia-
tion.”).
17 Prohibiting employees from remaining on the premises obviously
limits their ability to communicate with their coworkers. Furthermore,
as Members Fanning and Jenkins observed in GTE Lenkurt, Inc., 204
NLRB 921, 923 (1973), “it compartmentalizes the employees in each
shift and completely isolates them from their fellow employees on other
shifts.” Accordingly, they concluded, such a rule “is destructive of the
Employees’ protected right to promote self-organization.” Id. While
the above views were written in partial dissent in GTE Lenkurt, they
were followed by the majority in Bulova Watch Co., 208 NLRB 798,
798 fn. 2 (1974), which was in turn relied on by the Board in fashioning
the Tri-County standard. See Tri-County, 222 NLRB at 1089; ITT
Industries v. NLRB, 413 F.3d at 68.
18 Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (quoting Central
Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2082
to “the interior of the plant and other working areas”—
reflects the distinction established in Republic Aviation
for no-distribution rules, recognizing the employer’s
higher interest in controlling employee activity in work-
ing areas because of its foreseeable effect on production.
The second requirement—that the rule be “clearly dis-
seminated to all employees”—aptly measures both the
strength of the employer’s legitimate interest and the
neutrality of the rule using the employer’s own conduct
as a gauge: if the rule is not sufficiently important to the
employer for it to announce it clearly, and to all employ-
ees, the employer’s interest will not outweigh the em-
ployee’s interest in exercising their Section 7 rights. The
third requirement—that the rule apply to off-duty em-
ployees seeking access “for any purpose”—similarly
tests the strength and neutrality of the employer’s legiti-
mate interest: if off-duty employee access is not suffi-
ciently prejudicial to “production or discipline” to war-
rant, in the employer’s judgment, a uniform ban, neither
does it warrant the infringement of a fundamental statu-
tory right.19 It is this third prong of the Tri-County test
that the Respondent’s rule fails even after the May 21
dissemination.
The Respondent’s policy generally prohibits off-duty
employees’ access to most of the interior of the Health
Center’s building. However, it makes an exception to
that general prohibition by permitting access “to attend
Health center sponsored events, such as retirement par-
ties and baby showers.” Thus, discussing self-
organization or terms and conditions of employment are
among the purposes for which the Respondent’s policy
does not allow access.20 Indeed, on May 14, 2009, the
Respondent enforced its no-access policy against off-
duty employees who were on the premises to campaign
for the Union. The Respondent’s policy thus clearly fails
the third prong of the Tri-County test, as it does not uni-
formly prohibit access by off-duty employees seeking
entry to the property for any purpose. Most egregiously,
the exception is not a narrow one that might arguably be
viewed as justified by “special circumstances”—rather, it

19 In addition to the three-part test for validity of a no off-duty access
rule, the Board in Tri-County promulgated a different standard regard-
ing employer rules limiting access to outdoor areas. This aspect of Tri-
County is not at issue here.
20 Accordingly, the principal point upon which the dissent rests is in-
correct: “First,” the dissent asserts, “the Respondent’s off-duty access
rule does not prohibit off-duty access for the purpose of discussing self-
organization or terms and conditions of employment.” In fact, the rule
prohibits off-duty access for all purposes except those specified in the
rule; the exceptions, of course, do not include Sec. 7 activity. Moreo-
ver, the Respondent itself applied the rule to prohibit discussing self-
organization when it ejected from the building off-duty employees who
were distributing union literature in a nonworking area.
applies to any and all events sponsored by the Respond-
ent.21 In effect, the Respondent is telling its employees,
you may not enter the premises after your shift except
when we say you can. Such a rule is not consistent with
Tri-County.22 Consequently, we find that the Respond-

21 The cases cited in the dissent are inapposite for this and other rea-
sons. Hammary Mfg. Corp., 265 NLRB 57 (1982), presented the ques-
tion whether a no-solicitation rule was unlawful because it contained a
“sole exception” for the annual United Way campaign. The Board ruled
that it was not, but found a violation based on disparate application of
the rule. Id.; Hammary Mfg. Corp., 258 NLRB 1319 (1981). The
differences between Hammary and the instant case are obvious and
dispositive. First, Hammary did not involve a no-access rule; unlike in
the case we decide today, employees were not being barred from the
“place uniquely appropriate and almost solely available to them [for
self-organizational activity].” Republic Aviation, 324 U.S. at 801 fn. 6
(internal quotation marks omitted). Second, the rule in Hammary ap-
plied to employees only “during actual working time.” 258 NLRB at
1320. It did not apply to off-duty employees as did the Respondent’s
rule, so, unlike the Respondent, the employer in Hammary acted well
within its privilege under Republic Aviation to regulate its employees’
on-duty conduct. See Our Way, 268 NLRB 394 (1983). Third, the
narrow, extremely specific exception in Hammary could not be more
different than the present exception, in which the Respondent confers
upon itself broad, standardless discretion to suspend application of the
rule for any event that the Respondent sees fit to sponsor. See Lucile
Salter Packard Children’s Hospital v. NLRB, 97 F.3d 583, 590–591
(D.C. Cir. 1996) (rejecting exemption from no-solicitation rule for
goods and services deemed by the employer to be “a ‘benefit’ for its
employees,” because “[t]o allow such a subjective criterion to govern
access would eviscerate section 8(a)(1)’s purpose of preventing dis-
criminatory treatment of unions”).
The dissent’s citation of Flagstaff Medical Center, 357 NLRB No.
65 (2011), is likewise off the mark. In that case the Board upheld the
dismissal of an allegation that prohibiting an employee from engaging
in union solicitation in the kitchen was unlawful because the employee
had previously been permitted to solicit for the United Way. The judge
ruled that “the employer may permit such charitable solicitations on an
ad hoc basis without negating an otherwise legitimate exclusionary
rule.” Id., slip op. at 27. Again, the cited case involved a no-
solicitation rule, not a no-access rule, and involved a specific, narrow
exception. More significantly, it involved an ad hoc exception to the
rule—an instance of nonenforcement of the rule—and not an exception
contained in the rule itself. This distinction, which underlies the ruling
in Flagstaff, is crucial: ad hoc exceptions made by the employer in its
enforcement of an otherwise valid rule may support a finding of dis-
criminatory enforcement, but an exception contained in the rule itself
goes to the facial validity of the rule. The dissent fails to address this
distinction by incorrectly describing today’s holding as “an ‘all or
nothing approach’ under which such rules are invalid if the employer
has ever allowed any exception to them for any occasional purpose
unrelated to Section 7 activity.” Contrary to the dissent, this case in-
volves not an ad hoc exception made for an “occasional purpose,” but a
broad, all-encompassing exemption contained in the rule itself.
22 Tri-County, which has been the law concerning no-access rules for
over 35 years, states the third requirement in clear and unequivocal
language: the rule must apply to off-duty employees “for any purpose.”
222 NLRB at 1089 (emphasis supplied). Contrary to the dissent, the
succeeding phrase, “and not just to those employees engaging in union
activity,” cannot be read as limiting or modifying the clear meaning of
those three words, nor has the dissent cited any case in which Tri-
County has been applied to permit an exemption resembling in any way
ST. JOHN’S HEALTH CENTER

2083
ent’s off-duty employee access rule violates Section
8(a)(1) for the additional reason that it does not uniform-
ly prohibit access to off-duty employees seeking entry to
the property for any purpose.
ORDER
The National Labor Relations Board orders that the
Respondent, Saint John’s Health Center, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union and
other protected concerted activities.
(b) Threatening employees with discipline for engag-
ing in union or other protected concerted activities.
(c) Threatening employees with calling the police and
having them arrested for engaging in union or other pro-
tected concerted activities.
(d) Creating the impression that the employees’ union
activities were under surveillance.
(e) Prohibiting employees from wearing union ribbons
in immediate patient care areas that state, “Saint John’s
RNs for Safe Patient Care.”
(f) Promulgating, maintaining, and enforcing a rule
which limits off-duty employee access to nonworking
areas of its facility without providing adequate notice of
the rule to employees.
(g) Promulgating, maintaining, and enforcing a rule
which limits off-duty employee access to nonworking
areas of its facility for some purposes while permitting
access to off-duty employees for other purposes.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Cease prohibiting employees from wearing union
ribbons in immediate patient care areas that state, “Saint
John’s RNs for Safe Patient Care.”
(b) Cease giving force and effect to a rule which limits
employees’ access to its facility without providing ade-
quate notice of the rule to employees.
(c) Rescind Solicitation and Distribution Policy 830.08
to the extent that it permits access to the Respondent’s
facility to off-duty employees for certain purposes while
barring access to off-duty employees for other purposes.
(d) Within 14 days after service by the Region, post at
its facilities in Los Angeles, California, copies of the

the one contained in the Respondent’s rule. As explained above, the
Tri-County standard is soundly based in the fundamental policies of the
Act, and today’s decision is a straightforward application of this
longstanding rule to the facts before us.
attached notice marked “Appendix.”23 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
in the position employed by the Respondent at any time
since October 7, 2008.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
(f) Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HAYES, dissenting in part.
The Respondent, Saint John’s Health Center, reasona-
bly tried to protect its patients from becoming enmeshed
in a union organizing campaign by banning employees in
immediate patient care areas from wearing a particular
union ribbon attacking the safety of its patient care. Tak-
ing the peculiar view that, absent proof of discriminatory
enforcement, a broader restriction of Section 7 activity is
presumptively lawful, but a narrower restriction is not,
my colleagues find this ban to be unlawful. My col-
leagues also invalidate the Respondent’s rule limiting
off-duty employee access to the hospital, even though the
rule provides for unrestricted access to the employee
cafeteria for any purpose, obviously including Section 7
activity. In finding that unfair labor practice, the majori-
ty takes an “all or nothing approach” under which such
rules are invalid if the employer has ever allowed any
exception to them for any occasional purpose unrelated

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2084
to Section 7 activity. Because these rulings unnecessari-
ly upset the careful balance struck by the Supreme Court
between employee organizing rights and a health care
employer’s legitimate patient care concerns, I respectful-
ly dissent.1
A. The Respondent’s Ribbon Ban Was Lawful
Facts
During a 2008 organizing campaign, union organizers
gave the Respondent’s registered nurses ribbons stating
“Saint John’s RNs for Safe Patient Care.” It is undisput-
ed that the ribbons were intended to criticize the safety of
patient care—particularly the hospital’s alleged noncom-
pliance with a California law on nurse-to-patient staffing
ratios. There is no evidence that the Respondent had ever
permitted employees to wear insignia critical of patient
care in immediate patient care areas. The Respondent,
however, had allowed RNs to wear other union buttons
and insignia, political buttons, and hospital-issued but-
tons in various parts of the hospital, including immediate
patient care areas. One hospital-issued button promoting
the safety of the hospital’s care read “Saint John’s mis-
sion is patient safe care.”
On November 7, 2008, the Respondent’s vice presi-
dent for human resources Steven Sharrer instructed su-
pervisors that they should not permit the “Saint John’s
RNs for Safe Patient Care” ribbons to be worn in imme-
diate patient care areas, but that the ribbons could be
worn in all other hospital areas. Sharrer explained that
the ban limited to immediate patient care areas was nec-
essary because the ribbon “may be detrimental and dis-
ruptive to patient care.” On or around November 20 or
21, 2008, Respondent’s director of women’s health ser-
vices Irena Zuanic instructed several RNs not to wear the
same ribbons in immediate patient care areas and ad-
vised them that they would receive written warnings for
insubordination if they persisted.
Analysis
The judge dismissed the complaint’s allegation that the
“Saint John’s RNs for Safe Patient Care” ribbon ban vio-
lated Section 8(a)(1) of the Act on its face. He found the
ban to be presumptively lawful under controlling Su-
preme Court and Board precedent because it was limited
to immediate patient care areas. However, the judge did
find that the Respondent violated Section 8(a)(1) by dis-
parately enforcing the ribbon ban, in that the Respondent
had permitted other buttons and union insignia that he

1 I agree with the majority’s adoption of the judge’s findings of vio-
lations to which there are no exceptions.
regarded as being of a “similar character” to the prohibit-
ed “Saint John’s RNs for Safe Patient Care” ribbon.2
The majority does not reach the judge’s disparate en-
forcement finding. Instead, my colleagues first conclude,
contrary to the judge, that the narrow restriction on wear-
ing the potentially disturbing “Saint John’s RNs for Safe
Patient Care” ribbon was presumptively invalid, even
though it was limited to immediate patient care areas,
because the Respondent allowed other insignia, including
union insignia, to be worn in those areas. Characterizing
the prohibition of the Union’s ribbon as “selective,” the
majority holds that a rule either forbids all insignia in
immediate patient care areas or it is not presumptively
valid. Then, finding that no “special circumstances” jus-
tified this “selective” ban, my colleagues find the ban
itself violated Section 8(a)(1) of the Act.
Contrary to the majority, I would find that a “special
circumstances” test, imposing on the Respondent the
burden to justify its ban, does not apply here. I would
adopt the judge’s finding that the “Saint John’s RNs for
Safe Patient Care” ribbon ban in patient care areas was
presumptively valid and that the General Counsel failed
to rebut the presumption. As discussed below, that pre-
sumption applies to restrictions on union insignia in im-
mediate patient care areas and has not previously been
defined as applicable only to absolute bans of such insig-
nia. A finding that the rule was merely “selective” is no
substitute for a finding of disparate enforcement, which
cannot be made on this record. Because there was no
disparate enforcement here, I would also reverse the
judge’s finding of an 8(a)(1) violation on that basis.
The Board and the courts have long recognized that
“the primary function of a hospital is patient care and . . .
a tranquil atmosphere is essential to the carrying out of
that function.” St. John’s Hospital, 222 NLRB 1150
(1976), enf. granted in part and denied in part 557 F.2d
1368 (10th Cir. 1977). Thus, “the special characteristics
of hospitals justify a rule [on the wearing of union insig-
nia or union messages] different from that which the
Board generally applies to other employers.” Beth Israel
Hospital v. NLRB, 437 U.S. 483, 494 (1978). As the
Supreme Court has emphasized:

Hospitals, after all, are not factories or mines or assem-
bly plants. They are hospitals, where human ailments
are treated, where patients and relatives alike often are
under emotional strain and worry, where pleasing and
comforting patients are principal facets of the day’s ac-
tivity, and where the patient and his family—
irrespective of whether that patient and that family are

2

Although this theory of violation was not alleged in the complaint,
the Respondent does not except to the judge’s consideration of it.
ST. JOHN’S HEALTH CENTER

2085
labor or management oriented—need a restful, unclut-
tered, relaxing, and helpful atmosphere, rather than one
remindful of the tensions of the marketplace in addition
to the tensions of the sick bed.

NLRB v. Baptist Hospital, 442 U.S. 773, 783 fn. 12 (1979).
Thus, the Board has determined that, in healthcare fa-
cilities, restrictions on the wearing of union-related but-
tons and insignia are presumptively valid in immediate
patient care areas. Sacred Heart Medical Center, 347
NLRB 531 (2006), reversed on other grounds Washing-
ton State Nurses Assn. v. NLRB, 526 F.3d 577 (9th Cir.
2008). There is no requirement that such restrictions be
justified by showing specific special circumstances on a
case-by-case basis. That requirement applies only out-
side immediate patient care areas, where such restrictions
are presumptively invalid and an employer must show
that the restriction is “necessary to avoid disruption of
health care operations or disturbance of patients.” See
id.; Beth Israel, supra, 437 U.S. at 507.
Restrictions on organizing activity in immediate pa-
tient care areas are presumptively valid because
“[s]olicitation at any time in those areas might be unset-
tling to the patients.” St. John’s Hospital, supra. The
Supreme Court has held that this presumption is neces-
sary to insure that patient care is not disrupted in the
Act’s balancing of the employees’ right of self-
organization and the employer’s right to maintain disci-
pline and control of its property. Baptist Hospital, supra,
442 U.S. at 778–782; Beth Israel, supra, 437 U.S. at
491–493. A presumptively valid rule is lawful “in the
absence of evidence that it was adopted for a discrimina-
tory purpose.” Peyton Packing Co., 49 NLRB 828, 843
(1943), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied
323 U.S. 730 (1944).
Applying these principles, it is clear that the Respond-
ent’s prohibition of the “Saint John’s RNs for Safe Pa-
tient Care” ribbon was presumptively lawful. The Re-
spondent is unquestionably a healthcare facility, and the
disputed prohibition expressly applied only to “immedi-
ate patient care areas.” As the Board and the courts have
consistently recognized, organizing activity “at any time”
in such areas poses an unacceptable risk to patient care.
See, e.g., St. John’s Hospital, supra. There is also no
evidence that the ban was adopted for a discriminatory
purpose. To the contrary, the Respondent allowed many
other insignia, including union insignia, to be worn in all
areas of the hospital.3 Given this undisputed fact, any

3 Accordingly, there is no merit to the majority’s implication that the
Respondent banned “union insignia in patient care areas while allowing
all other insignia, both official and unofficial,” and I express no view
on whether such a ban would be lawful. Instead, the Respondent al-
contention that the Respondent banned the “Saint John’s
RNs for Safe Patient Care” ribbon because of its union
origins is untenable. Sacred Heart, supra at 533. Rather,
the ban was enforced, as the Respondent explained, be-
cause the ribbons “may be detrimental and disruptive to
patient care.” As the Board stated in Sacred Heart,
“[T]he mere fact that an employer has not previously
forbidden union insignia does not foreclose that employ-
er from ever imposing restrictions on buttons, particular-
ly where, as here, that insignia is potentially disruptive.”
347 NLRB at 534.
Further, regardless of whether they were Union-issued
or not, none of the other buttons, insignia or other mes-
sages that the Respondent permitted were critical of pa-
tient care safety. That made them fundamentally differ-
ent in character from the ribbon that was banned. Sacred
Heart, supra at 533 (ribbons and buttons that “speak[ ]
primarily to [patient] safety” are different in kind from
those that do not). Indeed, the majority does not find that
the Respondent’s ban was discriminatory. Instead, my
colleagues rely solely on the “selective” nature of the ban
in order to shift the burden of proving the ban’s validity
to the Respondent, in contravention of the well-
established evidentiary presumptions governing this situ-
ation. The fact that a health care employer permits the
wearing of some insignia in patient care areas, even
when it has a general right to prohibit all such insignia,
does not mean that a narrower restriction focusing on one
or more insignia deemed to have particularly disruptive
potential is not just as presumptively valid because it
serves the same prophylactic purpose as a general ban.4
The burden remains on the General Counsel to rebut the
presumption with proof of discriminatory purpose.
Contrary to the majority, neither Casa San Miguel, 320
NLRB 534 (1995), nor Mt. Clemens General Hospital,
335 NLRB 48 (2001), enfd. 328 F.3d 837 (6th Cir.
2003), supports their position. In Casa San Miguel, the
Board adopted the decision of the judge who found that
an instruction to a nurse to stop wearing a uniform to
which she had added a prounion message was a pre-
sumptively valid instruction in immediate patient care
areas. The judge so held on the sole basis that “the Act

lowed all union insignia, except one, as well as other personal insignia.
The majority fails to give proper weight to this critical fact.
4 Thus, the Respondent’s past allowance of other union insignia is
not a concession, as the majority argues, that all union insignia are not
potentially disruptive. The purpose of the presumptive validity princi-
ple is to protect patients by allowing hospitals to presume that any
union insignia in immediate patient care areas may be potentially dis-
ruptive. In this case, the Respondent reasonably concluded that the first
union ribbon critical of patient care that it confronted was potentially
disruptive. That judgment was well within the purpose of the presump-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2086
does not prohibit Respondent from refusing to allow its
employees to wear such a uniform during those periods
of time they work in patient care areas.” 320 NLRB at
540. The judge separately found the uniform ban lawful
as to nonpatient care areas as well, concluding that “spe-
cial circumstances” supported the ban there because it
would be impractical for employees to change uniforms
when entering and leaving patient care areas.5 Contrary
to the majority’s interpretation, nothing in the Board’s
decision remotely suggests that the hospital’s past prac-
tice was relevant to the separate issue of the ban’s pre-
sumptive validity in immediate patient care areas. In
fact, the separate treatment of the ban in immediate pa-
tient care areas and in other hospital areas demonstrates
that it was not.6 As such, far from supporting my col-
leagues’ views, Casa San Miguel establishes that the ban
at issue here was lawful.
The Board’s decision in Mt. Clemens General Hospi-
tal, supra, also does not support the majority’s position.
The ban on the union button in that case, unlike this case,
applied to all areas of the hospital not just patient care
areas. Thus, under controlling Board law, the ban was
invalid in all areas of the hospital including patient care
areas7 and there was no need for the judge to conduct a
separate inquiry into the ban’s application in patient care
areas. The hospital in Mt. Clemens also conceded that it
had previously allowed “controversial” buttons. In con-
trast, the Respondent had not previously done so and the
ribbon in this case was the first message critical of pa-
tient care that the Respondent had confronted.
The majority’s position is further unreasonable from a
patient care standpoint. The presumptive validity princi-
ple rests on the Board’s determination that union insignia
in immediate patient care areas “at any time” might be
unsettling to patients. See St. John’s, supra at 1150.
Viewing the matter from the patient’s perspective, as the
Supreme Court has instructed,8 the “St. John’s RNs for

5 In support of the ban’s validity, the judge also noted there was no
evidence that the hospital had refused to allow employees to wear un-
ion buttons on their uniforms or had permitted employees to wear uni-
forms with other emblems or messages. 320 NLRB at 540. Conse-
quently, and contrary to the majority, the judge could not have con-
cluded that the ban would have to prohibit all buttons, insignia, em-
blems, or other messages, “unofficial” or otherwise, in order to be
valid.
6 Moreover, the Board found that the immediate patient care area
ban in Casa San Miguel was presumptively valid even though it was
“selectively” enforced: the nurse had worn the uniform in question one
day a week for a year before it was prohibited.
7 Medical Center of Beaver County, Inc., 266 NLRB 429, 430
(1983). I do not necessarily agree with the proposition that an overly
broad rule is invalid as to all areas of the hospital—an issue that is not
presented here.
8 Baptist Hospital, 442 U.S. at 782–784.
Safe Patient Care” ribbon was just as intrusive to patients
as it would have been if other insignia had not been al-
lowed in the past. Indeed, it is highly unlikely that a giv-
en patient would be aware of the hospital’s past practice
on insignia. The Board’s presumptions in this area are
valid only insofar as there is “a sound factual connection
between the proved and inferred facts.” Baptist Hospital,
442 U.S. at 787 (citing Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945)). It is hard to see how the majori-
ty’s interpretation of the presumption satisfies this test.
The majority’s presumptive validity standard is practi-
cally unworkable as well. Instead of giving the parties
certainty as to what may be prohibited in immediate pa-
tient care areas, the majority’s proposed standard turns
on the hospital’s past practice. If any kind of insignia
have ever been allowed at any time no matter how long
ago, then any restriction on any union insignia, no matter
how offensive, is presumptively unlawful and the em-
ployer must show special circumstances.9 That is not the
law. As the Board stated in Sacred Heart, “[T]he mere
fact that an employer has not previously forbidden union
insignia does not foreclose that employer from ever im-
posing restrictions on buttons, particularly where, as
here, that insignia is potentially disruptive.” 347 NLRB
at 534.10
B. The Limited Exceptions In Respondent’s Off-Duty
Access Rule Did Not Render The Rule Invalid
Facts
In January 2009,11 the Respondent issued a policy pro-
hibiting off-duty employee access to the hospital build-
ing interior, with two exceptions. One exception allowed
off-duty employees access to the cafeteria, with no ap-
parent limitation on Section 7 activity in that location.
The other exception permitted off-duty employees access
to the hospital “to attend Health [C]enter sponsored

9 The majority asserts that their holding would not prevent a categor-
ical ban on “unofficial insignia” even if a hospital previously had al-
lowed such insignia in immediate patient care areas, “so long as the ban
is not imposed in response to protected activity.” But that is the inevi-
table practical import of the majority’s holding all the same.
10 Even applying the majority’s standard, the Respondent established
special circumstances. As noted above, by demanding “Safe Patient
Care,” the ribbons implicitly sent the message that existing care was not
safe. Sacred Heart, supra at 532 (such inherently disturbing claims
likely to upset tranquil atmosphere necessary for successful patient
care). In contrast, the Respondent’s button proclaiming that “patient
safe care” was its mission sent the opposite message. Its allowance of
this and other innocuous insignia thus further supports a finding of
special circumstances. Sacred Heart, supra; Casa San Miguel, supra
(same). And, because other union insignia were allowed, the limited
ban imposed by the Respondent here would not tend to interfere with,
restrain, or coerce employees in the exercise of their Sec. 7 rights. Id.
11 All dates hereafter are in 2009.
ST. JOHN’S HEALTH CENTER

2087
events, such as retirement parties and baby showers.”
The Respondent posted the policy on the shared intranet
in May and emailed it to the employees on May 21. On
May 14, the Respondent enforced the rule against two
off-duty employees who were returning to the hospital to
campaign for the Union. On May 15, the Respondent
enforced the rule against an employee when he returned
to the hospital to retrieve his wallet.
Analysis
The three-prong test in Tri-County Medical Center,
222 NLRB 1089 (1976), governs the legality of off-duty
employee access rules.12 An off-duty employee access
ban is valid only if it “(1) limits access solely with re-
spect to the interior of the plant and other working areas;
(2) is clearly disseminated to all employees; and (3) ap-
plies to off-duty employees seeking access to the plant
for any purpose and not just to those employees engaging
in union activity.” Id.
It is undisputed that, absent adequate dissemination,
the Respondent’s off-duty access rule violated the second
prong of the Tri-County test until May 21. The Re-
spondent does not except to the judge’s finding on that
basis that its May 14 and 15 prohibitions of entry pursu-
ant to the rule were unlawful. However, the majority
seizes upon minimal argument in the Charging Party’s
exceptions to find that, even after clear dissemination,
the rule violated the third Tri-County prong as well and
must therefore be rescinded.13 As with the ribbon ban,
the majority faults the Respondent for allowing an excep-
tion to the rule—in this case for access to “Hospital
[C]enter sponsored events, such as retirement parties and
baby showers.”14 Citing Republic Aviation Corp. v.
NLRB, supra, my colleagues contend that only a “uni-
form ban” on all off-duty access is lawful. Terming the
exception “egregious[],” the majority finds the rule does
not allow access for the purpose of “discussing self-
organization or terms and conditions of employment,”
and in effect tells employees “you may not enter the
premises after your shift except when we say you can.”
With all due respect, the majority’s construction of the
rule is egregious, not the rule itself.

12 I express no opinion whether I agree entirely with the Tri-County
test or its underlying rationale, but I agree to apply it as extant law in
this case.
13 The Acting General Counsel did not urge that position to the
Board. And, although the Union’s exceptions challenged the rule’s
facial validity, its brief barely mentioned that argument and it never
provided any citations to supporting authority. The Acting General
Counsel did not join in these exceptions. My colleagues thus have
chosen to rule at length on an issue that was neither addressed by the
judge nor analyzed in any depth by the excepting party.
14 The majority does not contend that allowing unlimited access to
the cafeteria for any purpose renders the rule unlawful.
First, contrary to my colleagues, the Respondent’s off-
duty access rule does not prohibit off-duty access for the
purpose of discussing self organization or terms and con-
ditions of employment. Instead, the rule by its plain
terms allows unfettered access to the cafeteria and does
not expressly or implicitly preclude such access for the
purpose of engaging in Section 7 activity. Thus, alt-
hough the Respondent could lawfully have prohibited
off-duty employees from engaging in such activity any-
where in the interior of its facility, it did not do so. This
is conclusive evidence that the rule does not discriminate
against union activity. Indeed, the Supreme Court has
observed that a hospital cafeteria is especially conducive
to discussing self organization or terms and conditions of
employment and that it is a “natural gathering” place for
off-duty employees to discuss union matters with their
colleagues. See Beth Israel, supra at 505 (availability of
one part of a healthcare facility for organizing activity
may be a factor “required to be considered” in evaluating
restrictions in other areas of the same facility).
Nor would employees reasonably read the exception
for “Health [C]enter sponsored events, such as retirement
parties and baby showers” as establishing an arbitrary
denial of access “except when we say you can.” Rather,
a reasonable employee would understand this as a limited
exception that in no way discriminates against union ac-
tivity. It is well settled that in determining whether an
employer rule is unlawful, the Board must give the rule a
reasonable reading. See, e.g., Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646, 646–648 (2004). To that
end, the Board must refrain from reading particular
phrases in isolation or presuming improper interference
with employee rights. Id. at 646. The majority’s reading
of the Respondent’s off-duty access rule cannot be rec-
onciled with these principles.
Moreover, nothing in Tri-County mandates that off-
duty access rules prohibit all access at all times, regard-
less of the circumstances, in order to pass legal muster.
No precedent supports the majority’s interpretation. For
my colleagues to suggest that an off-duty access rule
which allows off-duty employees routine access to the
cafeteria for Section 7 activity must nevertheless forbid
off-duty employees from entering the hospital for occa-
sional “retirement parties and baby showers” in order to
be lawful defies common sense. My colleagues reach
this result by effectively ignoring the second part of Tri-
County’s third prong, which requires that an off-duty
access rule apply “to off-duty employees seeking access
to the plant for any purpose and not just to those employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2088
ees engaging in union activity.” (Emphasis added.)15
Read as a whole, this standard embodies the familiar
principle that rules are invalid if they discriminate
against union activity. Peyton Packing Co., supra. As
shown above, the Respondent’s rule does not discrimi-
nate.
Contrary to the majority, Republic Aviation does not
support its position. The Supreme Court, in that case,
did not resolve the access rights of off-duty employees
but instead held that an employer may not rely on its
property rights to forbid on-duty employees from engag-
ing in union-related activities on their own nonworking
time, i.e., during breaks and meal periods. Id. at 801–
803 and fns. 6–9.16 That holding provides no support for
the majority’s view that only a “uniform” prohibition of
off-duty access will pass muster. To the contrary, the
Supreme Court has plainly rejected the “all or nothing”
standard the majority espouses. In NLRB v. Steelworkers
(NuTone), 357 U.S. 357 (1958), the Supreme Court ruled
that an employer’s right to control its property allows it
to impose—but not itself abide by—time, place, and
manner restrictions on employees’ workplace organizing.
Likewise, the Board has repeatedly held that employers
may permit charitable solicitations on an ad hoc basis
without negating an otherwise legitimate exclusionary
rule. Flagstaff Medical Center, 357 NLRB No. 65, slip
op. at 27 (2011) (employer lawfully barred employee
from kitchen for union activity despite having allowed
employee access for United Way solicitation); Hammary
Mfg. Corp., 265 NLRB 57 (1982). In Hammary, the
Board specifically rejected the “all or nothing” approach
the majority espouses, correctly recognizing that such a
per se standard does not “adequately or reasonably
strike[]the proper balance” between the employer’s inter-
ests in maintaining production and discipline and em-
ployees’ Section 7 rights to engage in solicitation.17 Id. at
fn. 4. Unlike my colleagues, I would adhere to these

15 The majority asserts that the words in the second part of the third
Tri-County prong do not limit or modify the words in the first part. But
my colleagues never say what those words do mean. Their analysis,
unlike mine, would give that portion of the Board’s standard no mean-
ing at all.
16 The Court quoted language from the Board’s Peyton Packing
opinion to the effect that time outside working hours, whether before or
after work, “is an employee’s time to use as he wishes, without unrea-
sonable restraint.” Insofar as this language addresses access by off-duty
employees, it was irrelevant to the issue presented and decided in Re-
public Aviation. And, in any event, nothing in the Court’s opinion, or in
Peyton Packing for that matter, indicates that rules regarding off-duty
access are unlawful if they include exceptions like those present here.
17 The majority attempts to distinguish this precedent on its specific
facts, but fails to properly acknowledge the broader principle it estab-
lishes, namely that the Act does not require that bans on solicitation or
insignia be “all or nothing” propositions.
principles and find that the Respondent’s no-access rule
did not violate the third prong of the Tri-County test.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT do anything that interferes with these
rights. More particularly:
WE WILL NOT threaten you with discipline for wearing
ribbons that state, “Saint John’s RNs for Safe Patient
Care.”
WE WILL NOT ask you questions about your union sup-
port or activities or the union support and activities of
other employees.
WE WILL NOT threaten you with calling the police or
with arrest for trespass because you engaged in union or
other protected concerted activities.
WE WILL NOT create the impression that we are spying
on your union activities.
WE WILL NOT prohibit you from wearing union ribbons
in immediate patient care areas that state, “Saint John’s
RNs for Safe Patient Care.”
WE WILL NOT promulgate, maintain or enforce a rule
which limits your access to our facilities without giving
you adequate notice of the creation of the rule and with-
out permitting access to off-duty employees who seek
access for certain purposes while barring access to off-
duty employees who seek access for other purposes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind our prohibition against employees
wearing union ribbons that state, “Saint John’s RNs for
Safe Patient Care.”
WE WILL provide you adequate notice before enforcing
new rules limiting your access to the facility.
WE WILL rescind Solicitation and Distribution Policy
830.08 to the extent that it permits access to the plant to
ST. JOHN’S HEALTH CENTER

2089
off-duty employees who seek access for certain purposes
while barring access to the plant to off-duty employees
who seek access for other purposes.
SAINT JOHN’S HEALTH CENTER
Katherine Mankin, Esq., for the General Counsel.
Robert Kane, Esq. (Stradling Yocca Carlson & Rauth), of
Newport Beach, California, on behalf of Respondent.
Marcie Berman, Esq., of Los Angeles, California, on behalf of
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Los Angeles, California, on March 8 and 9, 2010,
upon the order consolidating cases and consolidated complaint
(complaint), issued on November 30, 2009, by the Regional
Director for Region 31.
The complaint alleges that Saint John’s Health Center (Re-
spondent) violated Section 8(a)(1) of the Act by interrogating
employees about their union activities, by prohibiting employ-
ees from wearing ribbons reading “St. John’s RNs for Safe
Patient Care” in immediate patient care areas, by threatening
employees with discipline for wearing the ribbons, by promul-
gating and maintaining a rule limiting off-duty employee access
to discourage employees’ from engaging in protected activities,
by selectively and discriminatorily enforcing the access rule to
discourage employees from engaging in protected activities, by
creating the impression that employees protected activities were
under surveillance, and by threatening employees with arrest
because employees engaged in protected activities. In its an-
swer, as amended, Respondent admitted many of the operative
allegations of the complaint but denied it had violated the Act.
FINDINGS OF FACT
Upon the entire record,1 including the briefs from the Gen-
eral Counsel,2 Charging Party, and Respondent, I make the
following findings of fact.
I. JURISDICTION
Respondent admitted it is a California corporation with an
office and place of business located in Santa Monica, Califor-
nia, where it is engaged in the operation of an acute care hospi-
tal. Annually, Respondent in the course of its business opera-
tions derived gross revenues in excess of $250,000 and pur-
chased and received at its facility goods valued in excess of
$50,000 directly from points outside the State of California.
Based upon the above, Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

1 On September 30, 2009, counsel for the General Counsel filed a
motion to correct the record. Good cause having been shown and no
opposition filed, the motion is granted.
2 On October 14, 2009, counsel for the General Counsel filed and er-
rata to posthearing brief. As the errata corrects a clerical error and
there is no opposition, I accept the errata.
II. LABOR ORGANIZATION
Respondent admitted and I find that the California Nurses
Association/ National Nurses Organizing Committee (Union) is
a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
This case involves an organizing campaign that was con-
ducted by the Union at Respondent’s facility among its RNs in
2008, Respondent’s enforcement of a no access rule, Respond-
ent’s enforcement of a rule prohibiting wearing paraphernalia
in patient care areas, and Respondent’s threats to have employ-
ees arrested for violating its no access rules. Respondent con-
tends, inter alia, that wearing the ribbon was disparaging to
Respondent.
By May 2008, a petition3 to certify the Union as the repre-
sentative of Respondent’s Registered Nurses (RNs) was being
circulated among Respondent’s employees. Approximately
235 to 240 RNs signed the petition. RN Lori Hammond
(Hammond), RN Zhila Morrissi (Morrissi), RN Jack Cline
(Cline), and RN Lizabeth Wade (Wade) were among the nurses
who helped circulate the petition and deliver the petition to the
CEO of the hospital, Lou Lazatin (Lazatin). The petition was
presented to Respondent on or about October 1, 2008. The
petition included a cover letter4 and included the following
statement:
Enclosed are Saint John’s RNs’ signatures on a petition call-
ing for compliance with California safe staffing laws and regu-
lations, for fair compensation that will enable our hospital to
attract and retain quality registered nurses, and for ending all
expenditures on antiunion consultants.
2. The alleged interrogations
a. Interrogations by Trudi Hemmons
Approximately the second week of October 2008, Nurse
Manager Trudi Hemmons (Hemmons), an admitted 2(11) su-
pervisor, discussed the petition with 5 to 6 RNs in her Unit.
The discussions took place at a nursing station in the Medical
Surgery Unit during a change in shift. As the RNs were sitting
at the nursing station, Hemmons went from person to person,
addressing 1 to 2 RNs at a time. Hemmons asked all the RNs
why they had signed the Petition. None of the RNs responded
except for RN Cline. During the discussions, Hemmons said,
“we don’t need a third party representation at Saint John’s”5and
continued to refer to the Union as a third party. RN Cline re-
sponded to Hemmons by stating that “the union wasn’t a third
party [and] that the nurses at Saint John’s would make up the
union.”6 The RNs’ testimony was credible and uncontroverted.
I will credit their testimony.

3 GC Exh. 2.
4 R. Exh. 6.
5 Tr. at pp. 199, 201.
6 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2090
2. Interrogations by Janice Frost
Between approximately October 7 and 15, 2008, Janice Frost
(Frost) Respondent’s interim director of in-patient oncology
initiated conversations about the petition with RN Morrissi, RN
Ann Chan (Chan), RN Colleen O’Grady (O’Grady), RN Lynn
Larson (Larson), RN Steven Weisbaum (Weisbaum), and RN
Sunny SunSheil Choy (Choy). The parties stipulated that Frost
was a supervisor of Respondent within the meaning of Section
2(11) and/or an agent of Respondent within the meaning of
Section 2(13).7 Each of the conversations, besides RN Choy’s,
took place at the nurses’ station in the Oncology Unit. The
conversation with RN Choy took place in Frost’s office. Dur-
ing the conversations, Frost asked the RNs questions about
their signatures on the petition, including whether they knew
that the petition would be presented to Respondent’s admin-
istration and why they thought Respondent’s nurses needed a
union. Frost did not assure the RN’s that their participation
was voluntary or that there would be no repercussions or re-
prisals.
With regard to Frost’s November 2008 conversations about
the petition with RNs Morrissi and Chan, the following also
occurred: Frost told both of them that some nurses felt pressure
to sign the petition. Morrissi asked Frost, “What do you mean
they felt pressure?” Frost indicated that the nurses did not
know what they had signed. Morrissi responded, “I didn’t put
[a] gun to anyone’s head to sign this paper. I asked them to
read it carefully.” Frost then approached RN Chan and said
“Ann, do you know why you signed the paper?” Chan ap-
peared angry and responded, “What?” Chan then told Janice
that she didn’t sign the petition. At this point, Frost started
looking through the petition to find Chan’s name. Morrissi
indicated that Chan did not sign the petition and that she did not
even bother approaching Chan because she knew she was anti-
union. Chan again stated she did not sign the petition.8 At the
time of the conversations, no unfair labor practices had been
filed by the Union against Respondent. At the time of the con-
versations, Frost was not seeking to verify a union’s claimed
majority status or to investigate facts related to issues raised in
a complaint. I credit the RNs’ unrebutted testimony.
3. The ribbon
In early November 2008, union organizers gave RNs at Re-
spondent a white ribbon, stating “Saint John’s RNs for Safe
Patient Care” (ribbon).9 The ribbon was distributed to other
RNs employed by Respondent. For approximately 2 weeks,
RNs wore the ribbon throughout Respondent’s facilities, in-
cluding patients’ rooms. The ribbons were worn as an expres-
sion of union solidarity, as well as a concern about Respond-
ent’s noncompliance with a staffing law dealing with nursepa-
tient ratios.
The RNs’ uncontradicted and credited testimony indicated
that neither patients nor persons visiting patients commented or
asked questions about the ribbon. The RNs’ unrebutted testi-
mony established also that none of their supervisors or manag-

7 GC Exh. 3.
8 Tr. at pp. 103–106.
9 GC Exh. 6.
ers asked them about whether patients and persons visiting
patients had commented or asked about the ribbon.
On November 7, 2008, Respondent’s vice president of hu-
man resources ,Steven Sharrer (Sharrer), an admitted 2(11)
supervisor, emailed10 Respondent’s supervisors and told them
that employees could not wear the ribbon in “immediate patient
care areas.” In his email, Sharrer defined “immediate patient
care areas” as “patient rooms, treatment rooms, surgery, etc.”
Sharrer indicated that employees could, however, wear the
ribbon in, “the hallways, break rooms or other areas that are not
immediate patient care areas.” Sharrer explained that the ra-
tional for prohibiting the ribbon in immediate patient care areas
was that it was “detrimental and disruptive to patient care.”
Sharrer testified that the only investigation Respondent under-
took was to determine what departments the ribbon was being
worn in. According to Sharrer, he assumed that if a nurse was
wearing the ribbon in the department, they would wear it wher-
ever they went.11
On approximately November 20 or 21, 2008, Respondent’s
director of women’s health services, Irena Zuanic (Zuanic), an
admitted 2(11) supervisor, spoke with RN Hammond, RN
Melinda Bishop (Bishop), RN Martina Munoz-Friedman
(Munoz-Friedman), and RN Christina Craig (Craig) in the con-
ference room of the Labor and Delivery Unit. During the dis-
cussion, Zuanic instructed the RNs that they were not to wear
the ribbon in immediate patient care areas and that if they con-
tinued to wear the ribbon they would be written up for insubor-
dination.
The RNs have worn a variety of other insignias on their uni-
forms in immediate patient care areas from 2008 to 2010. Or-
gan donor badges, cancer awareness bracelets, diabetes, and
cancer ribbons, political buttons supporting Obama, religious
symbols, and badges, and St. John’s issued buttons that said
“Saint John’s mission is patient safe care” and “Just Ask,” were
among the insignias worn at Respondent’s facilities. Union
insignias were also worn in immediate patient care areas, in-
cluding CNA badge lanyards and CNA buttons that said “Re-
spect and Dignity” and “Saint John’s Nurses—the Heart of
Healthcare.” Respondent took no action against RN’s for wear-
ing buttons or insignias except for the ribbon at issue.
4. Off-Duty access and surveillance
a. Written policies regarding off-duty access
Respondent had a policy, effective June 2003 that dealt with
solicitation and distribution (the old policy).12 The old policy
did not address employee off-duty access.
Respondent also maintained a handbook which was distrib-
uted until approximately August 2005 (handbook).13 The
handbook was never rescinded. The handbook states the fol-
lowing:

10 GC Exh. 7.
11 At the time he issued the email. Sharrer incorrectly thought the
ribbon said: “Saint John’s RNs for Safer Patient Care.”
12 GC Exh. 9.
13 GC Exh. 10, p. 42.
ST. JOHN’S HEALTH CENTER

2091
The access of employees to the interior of Saint John’s prem-
ises and to working areas of the exterior of the premises while
not on duty shall be permitted only for the purpose of visiting
a patient.

Up until August 2005, handbooks were handed out to em-
ployees and signed by employees during the new hire process.
RNs Wade and Cline signed employee acknowledgement
forms,14 indicating receipt of the handbook. Sharrer was una-
ware of the existence of the handbook and any written rule with
respect to off-duty access until January 2010, when he com-
plied with the subpoena in this matter. Before January 2010,
Mr. Sharrer believed that Respondent’s off-duty access rule
was a matter of practice.
Respondent’s current solicitation and distribution policy
830.08 (current policy) became effective January 1, 2009.15
The currrent policy states the following:
Off-duty employees are not allowed access to the interior of
the Health Center’s buildings or to other working areas at the
Health Center. Off-duty employees are permitted access to the
cafeteria and are also permitted access to the building to attend
Health center sponsored events, such as retirement parties and
baby showers. Employees are expected to arrive at their work
area at or shortly before the beginning of their scheduled shift,
and are expected to leave their work area promptly after com-
pleting their shift.
Sharrer said that the current policy was revised in January
2009 to reflect what Respondent’s practices were at that time.
In determining Respondent’s practices regarding off-duty ac-
cess, Sharrer consulted the nursing director and various clinical
directors. The policy was eventually posted on Respondent’s
shared intranet and could be first accessed by employees at
some point in May 2009.
In March 2009, Sharrer spoke with Kevin Litzenberger, Re-
spondent’s security supervisor and told him that off-duty em-
ployees should not be in the hospital.
b. History and workplace culture regarding off-duty access
The evidence disclosed that RNs have gone to the interior of
the hospital while off-duty many times throughout their em-
ployment at Saint John’s. Some of the off-duty visits included
collecting personal belongings, picking up items ordered from
other nurses and staff, checking the schedule, requesting vaca-
tion, attending baby showers and birthday parties, attending
personal or family Dr. appointments and procedures, and simp-
ly visiting with friends and coworkers. The RNs often would
come into the hospital while off-duty and end up working a
shift. Charge nurses, supervisors, and managers observed RNs
on numerous occasions in the hospital while off-duty and RNs
were never told that they couldn’t be in the hospital until after
May 15, 2009.

14 R. Exhs. 3 and 4.
15 GC Exh. 8.
c. May 14, 2009 incident16
At approximately 9:30 p.m. on May 14, 2009, RNs Wade
and Cline went to the nurses’ lounge in the Post-Coronary Care
Unit to talk with other nurses about CNA and distribute CNA
literature. The nurses’ lounge is considered a nonworking area.
Wade was off-duty and was wearing street clothes and her hos-
pital badge.17 Cline was also off duty but still had on his uni-
form, as well as his hospital badge.18 After approximately 20
minutes, Charge Nurse “Louis” came in and asked Wade and
Cline what they were doing. Wade and Cline introduced them-
selves, identified themselves as being from Labor and Delivery,
and explained that they were campaigning for CNA.
At approximately 10 p.m. on May 14, 2009, house supervi-
sor, Ann DeBello (DeBello) called Sharrer and told him that
two “union organizers” were speaking to staff in the employee
lounge. Sharrer claimed he was under the assumption that the
union organizers were nonemployees and that it was not until
after the incident that he learned that the union organizers were
employees. Sharrer instructed the house supervisor to tell secu-
rity to go to the lounge and tell the union organizers to leave.
Sharrer also instructed the house supervisor to tell security that
if the individuals refused to leave, security should call the po-
lice.
A few minutes later, two security guards responded to the in-
cident. Standing outside of the doorway to the nurses’ lounge,
security guard “Bert” asked RNs Wade and Cline what they
were doing. Wade and Cline identified themselves as hospital
nurses and explained that they were campaigning for CNA, that
they were allowed to be there, and that they weren’t disrupting
patient care. Another nurse who was present in the lounge got
up and shut the door on the security guards. After a few
minutes, the door was opened and security guard “Bert” insist-
ed that they leave the premises. Wade and Cline then left the
nurses’ lounge. As they were passing the nurses’ station, Wade
told the security guards that what the guards were doing was
wrong and that it was harassment and intimidation. Security
guard “Bert” instructed her that she could be arrested by the
police and charged with trespassing if they did not comply.
Wade and Cline then left the immediate area and there was no
disruption in the care of the Unit. The security guards then
followed Wade and Cline to the elevators.
d. May 15, 2009 incident
At approximately 9 a.m. on May 15, 2009, RN Cline went to
the hospital with Eric Schmidt (Schmidt) to retrieve Cline’s
wallet. Cline was off duty and was wearing street clothes and
his hospital badge. Schmidt was not an employee and was

16 Wade and Cline’s testimony was not contradicted. Their testimo-
ny was detailed, consistent, and credible. I will credit their testimony.
17 RN Wade testified that her current hospital badge has a CNA lan-
yard attached to it and that she has been wearing it for approximately 1
year prior to the hearing—i.e. prior to May 14, 2009. However, after
being shown her Board affidavit, RN Wade admitted that she may have
received the CNA lanyard after May 14, 2009. This minor discrepancy
does not otherwise affect Wade’s credibility.
18 While RN Cline testified that his current hospital badge has a
CNA lanyard attached to it, he indicated that he has only been wearing
the CNA lanyard for approximately 6 months—i.e. post May 14, 2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2092
wearing street clothes. As Cline was walking through the south
entrance of Saint John’s, a security guard19 yelled, “Stop, Jack.”
The guard also told him, “No union business.” Cline respond-
ed, “I’m here to get my wallet. I have no intention o[f] doing
union business.”20 The guard insisted that he stop. Cline ex-
plained that he was an employee and that he could proceed.
The security guard yelled to another security guard and told the
guard, “Follow Jack up there.”21 At this point, Cline and his
friend went to the Medical/Surgical Unit to retrieve Cline’s
wallet from the break room. During this period, the security
guard followed Cline throughout the hospital. As Cline passed
the nurses’ station, he told the guard, “I’m a Saint John’s em-
ployee. You shouldn’t be following us around the hospital.”22
Cline and Schmidt then left the hospital facilities.
e. Post-May 15, 2009 notifications23
Employees were not notified about the existence of an up-
dated policy regarding off-duty access until after May 15, 2009.
Sometime in the last 2 weeks of May 2009, Manager Zuanic
held an impromptu staff meeting at the nurses’ station in the
Labor and Delivery Unit. RNs Hammond, Wade, Christafuli,
and Chavez were present at the meeting. At the meeting,
Zuanic said she wanted to discuss a policy regarding off-duty
access to the hospital and indicated that the policy had been in
effect since January 2009. Zuanic told the RNs that they were
forbidden to come into the Unit while off duty and explained
that they were only allowed in the hospital 6 minutes before a
shift and 6 minutes after a shift. Zuanic told the RNs that there
were limited situations when they could still come into the Unit
while offduty including staff meetings, a new baby, or to bring
a cake for an occasion. Zuanic showed Hammond and Wade a
copy of the policy dated January 2009. Zuanic also indicated
that the policy could be found on the intranet.24 Following the

19 RN Cline testified that he thought the security guard’s name was
“Lee.” It is somewhat unclear, however, whether the security guard
Cline thought he saw was in fact security guard “Lee King,” or was
another security guard named “Hobson.” Cline described “Lee” as an
African American with a goatee. He also described him as a “little
overweight.” Sharrer testified that there was a security guard at Saint
John’s named “Lee King.” Sharrer described “Lee King” as an “Afri-
can American, probably 5’8” to 5’10,” slightly overweight, meaning he
has a pot belly.” Sharrer also noted that Lee King had been known to
have a goatee. However, Sharrer indicated that “Lee King” was not
scheduled to work on May 15, 2009. Sharrer testified that “Hobson”
was the only African American security guard scheduled to work on
May 15, 2009. Sharrer described Hobson as an African American, 5’8”
to 5’10,” who had a goatee at times, but was “not slightly overweight.”
I do not find this discrepancy to affect Clines’ otherwise uncontroverted
and credible testimony. The Respondent’s ADR Report for May 15,
2009, does not reflect the incident with Cline and Schmidt. GC Exh.
13. However, I find those reports unreliable since they do not reflect
whether the hours reported refer to May 14 or 15, 2009.
20 Tr. at p. 216.
21 Id.
22 Tr. at p. 218.
23 The RNs’ testimony concerning this was not contradicted or rebut-
ted. Their testimony was detailed and given in an honest and forthright
manner. I will credit their testimony.
24 The intranet can be accessed at a computer terminal at Respond-
ent’s facilities. RN Hammond indicated that she cannot access the
meeting, the policy was posted in the team room and in the
break room in the Unit. Hammond and Wade testified that they
had never seen the policy before. Hammond said that the RNs
were concerned about this sudden change in policy and cited
examples to Zuanic when they had previously came into the
hospital while off duty and that they were never told that they
couldn’t be in the Unit. Zuanic responded by stating that the
policy had always been in place and that it was the employees’
responsibility to know Respondent’s policies and procedures.
Approximately May 21, 2009, RN Cline received an email
from Respondent regarding Respondent’s solicitation and dis-
tribution policy. Prior to this email, Cline had not received any
other emails concerning Respondent’s policies.
B. The Analysis
1. The Hemmonds’ interrogation
In complaint paragraph 6 it is alleged that in late September
2008,25 Hemmonds interrogated employees about their support
for the Union and about a petition relating to the Union or wag-
es, hours, or working conditions.
In Westwood Healthcare Center, 330 NLRB 935 (2000), the
Board discussed the test to determine whether interrogation is
unlawful under Section 8(a)(1) of the Act. In Westwood, the
Board applied the totality of the circumstances test adopted in
Rossmore House, 269 NLRB 1176 (1984). The Board said it
would look at five factors to determine whether the questioning
of an employee constitutes an unlawful interrogation:
(1) The background, i.e., is there a history of employer hos-
tility and discrimination?
(2) The nature of the information sought, e.g., did the inter-
rogator appear to be seeking information on which to base tak-
ing action against individual employees?
(3) The identity of the questioner, i.e. how high was he in
the company hierarchy?
(4) Place and method of interrogation, e.g. was employee
called from work to the boss's office? Was there an atmosphere
of unnatural formality?
(5) Truthfulness of the reply.26

The Board added:

In the final analysis, our task is to determine whether under all
the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he
or she would feel restrained from exercising rights protected
by Section 7 of the Act.27

intranet from her home. Hammond also indicated that while it is possi-
ble to access the intranet while on duty, it is difficult due to patient
assignments.
25 While the complaint alleges that the Hemmonds’ interrogation
took place in September 2008, the record reflects the interrogations
occurred in October 2008. Since the matter was fully litigated, I will
consider the conduct which occurred in October 2008 as supporting the
allegations contained in complaint par. 6. Hi-Tech Cable Corp., 318
NLRB 280 (1995).
26 Westwood, at p. 939.
27 Id. at p. 940.
ST. JOHN’S HEALTH CENTER

2093
In this case there is evidence through its letter to employees28
that Respondent was opposed to its employees’ organizing
activities. Hemmond’s interrogations must be measured in this
context. Hemmonds was a high-level supervisor in charge of
two departments. The information solicited by Hemmonds
went directly to the heart of identifying and discouraging em-
ployees’ protected-concerted activity. Hemmonds demonstrat-
ed Respondent’s hostility toward the Union and she interrogat-
ed the RNs one by one. Most did not venture a reply.
I find that Hemmond’s interrogation was calculated to coerce
employees so that they would feel restrained from engaging in
Section 7 activities. In view of the Frost interrogations dis-
cussed below, this was not an isolated incident. I conclude that
Respondent violated Section 8(a)(1) of the Act as alleged in
complaint paragraph 6.
2. The Frost interrogation
Complaint paragraph 7 alleges that on about October 7,
2008,29 Frost interrogated employees about their support for a
petition relating to the Union or wages, hours, or working con-
ditions.
The evidence reflects that Frost, Respondent’s Interim Direc-
tor of In-Patient Oncology, a high-level supervisor, interrogated
at least 6 RNs about their participation in a union petition. As
noted above, this interrogation occurred in the context of anti-
union statements by Respondent’s high-level managers and
supervisors. The effect of such interrogations about fundamen-
tal employee union and protected-concerted activity could have
no purpose other than to discourage those activities particularly
in view of the fact that Frost did not assure the RN’s that their
participation was voluntary or that there would be no repercus-
sions or reprisals for their participation and in view of the fact
that no unfair labor practices or election petition had been filed
which might have justified some investigation into the Union’s
majority status or into the basis of unfair labor practice charges.
I conclude that Frost’s interrogation of employees violated
Section 8(a)(1) of the Act as alleged in complaint paragraph 7.
3. The policy prohibiting employees from wearing ribbons
in immediate patient care areas
Complaint paragraph 8 alleges that since about November 7,
2008, Respondent has prohibited employees from wearing rib-
bons stating “Saint John’s RNs for Safe Patient Care” in imme-
diate patient care areas.
Counsel for the General Counsel contends that Respondent’s
prohibition on wearing the ribbons in immediate patient care
areas is not valid since the evidence demonstrates that the rib-
bons had no adverse effect on patients or health care operations.
To the contrary, Respondent argues that its ribbon policy is
presumptively valid.

28 GC Exhs. 15 and 16.
29 The evidence adduced at the hearing reflects that Frost engaged in
similar interrogations of several employees on dates between October
7, 2008, and November 2008. Since the matter was fully litigated, I
will consider the conduct which occurred in October and November
2008 as supporting the allegations contained in complaint paragraph 7.
Hi-Tech Cable Corp., 318 NLRB 280 (1995).
After Congress passed the 1974 Health Care Act granting the
Board jurisdiction over hospitals, the Board adopted a dual
standard for employee solicitation in hospital facilities in St.
John’s Hospital & School of Nursing, Inc., 222 NLRB 1150
(1976). The Supreme Court cited St. John’s Hospital with
approval in NLRB v. Beth Israel Hospital, 437 U.S. 483 (1978).
The Board’s dual test, as approved by the Supreme Court, per-
mits a hospital to prohibit solicitation in nonworktime in imme-
diate patient care areas. However, such prohibitions in areas
other than immediate patient care areas are invalid absent a
showing of disruption to patient care or health care operations
if solicitation were permitted in those areas. In NLRB v. Baptist
Hospital, Inc., 442 U.S. 773 (1979), the Supreme court con-
cluded that the hospital had established special circumstances
that validated the applicability of its no-solicitation rule to areas
outside immediate patient care areas including patient ward
corridors and waiting areas but not to other areas of the hospi-
tal.
In subsequent cases the Board has had occasion to review
hospital no solicitation rules that prohibited employee solicita-
tion in areas other than immediate patient care areas. In
George J. London Memorial Hospital, 238 NLRB 704, 708
(1978), the Board affirmed it does not prohibit rules forbidding
organizational activity in operating rooms, patients' rooms, and
patients' lounges but a rule proscribing solicitation in all areas
is improperly overbroad. The Board again restated this princi-
ple in Casa San Miquel, 320 NLRB 534, 540 (1995), where the
Board stated:

[E]mployees have the right to wear union insignia even while
at work. A hospital’s prohibition of the wearing of insignia,
however, on working and even on nonworking time in imme-
diate patient care areas is presumptively valid. Outside imme-
diate patient care areas, and outside other areas where the
hospital establishes an adverse effect on patient care, employ-
ees retain the right to wear union insignia while working. An
employer may further restrict the right by demonstrating
‘‘special circumstances.”

In Mt. Clemens General Hospital, 335 NLRB 48, 50 (2001),
the Board adopted the rationale of the ALJ who found that the
hospital’s requirement that employees remove union insignia
from their uniforms in all areas of the hospital was overbroad.
While recognizing the general rule that, “Respondent’s prohibi-
tion of wearing the FOT button in hospital patient care areas,
under Board precedent, such a position is normally presump-
tively valid,” the administrative law judge concluded that the
rule was invalid because:

First, the Respondent did not prohibit the wearing of any other
insignia or union buttons in all areas of the hospital including
patient care areas. . . . Second, while Respondent Vice Presi-
dent of Medical Affairs Dr. Michael Tonie testified that the
wearing of the FOT button in patient care areas of the hospital
could cause possible disruptions, he never put his reasons for
such speculation in writing. Likewise, he did not know of any
complaints from patients or their families that the wearing of
the FOT button was disruptive or caused a dialogue to take
place with the RN’s. Moreover, Dr. Tonie admitted that no
hospital administrator made an official report that the wearing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2094
of the FOT button caused any disruption or interfered with pa-
tient care or safety. . . .Third, Horde admitted that the wearing
of the FOT button did not cause a work stoppage or sit-down
strike and she did not have any evidence that the RN’s dis-
cussed the FOT button with patients. Likewise, she acknowl-
edged that the Respondent did not conduct a survey or make
any inquiries of patients or their families that the wearing of
the FOT button interfered with patient care or safety.

Recently in Sacred Heart Medical Center, 347 NLRB 531,
531–532 (2006), rev. and remanded 526 F.3d 577 (9th Cir.
2008), the Board restated its hospital solicitation rules in a case
where the hospital prohibited the wearing of a union button
reading “RNs Demand Safe Staffing” in those parts of the hos-
pital where employees might encounter patients or their fami-
lies. The Board stated once again:

In healthcare facilities, restrictions on the wearing of union-
related buttons are presumptively valid in immediate patient
care areas. Casa San Miquel, 320 NLRB 534, 540 (1995).
Outside immediate patient care areas, such restrictions are
presumptively invalid. Id. An employer may rebut the pre-
sumption of invalidity, however, by showing “special circum-
stances,” i.e., that the restriction is “necessary to avoid disrup-
tion of health care operations or disturbance of patients.” Beth
Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).

In Sacred Heart Medical Center the Board concluded that
the rule was valid since, “Respondent has rebutted the pre-
sumption of invalidity by showing “special circumstances” that
justify the restriction.” The Circuit Court reversed the Board
and concluded that the evidence did not establish special cir-
cumstances sufficient to overcome the presumption of invalidi-
ty of the rule outside immediate patient care areas.
In the instant case there is no dispute that Respondent’s rule
prohibited RNs from wearing the “Saint John’s RNs for Safe
Patient Care” ribbon only in immediate patient care areas that
included patient rooms, treatment rooms, and surgery but they
were permitted to be worn in the hallways, break rooms, or
other areas that are not immediate patient care areas. Here
counsel for the General Counsel argues that the Board’s “spe-
cial circumstances” test should apply to rebut the presumption
of the validity of no-solicitation rules limited to immediate
patient care areas. Contrary to General Counsel’s assertion in
its brief, nothing in Sacred Heart Medical Center, suggests that
the “special circumstances” test may be applied to rebut the
validity of rules limited to immediate patient care areas. The
Board in Sacred Heart Medical Center limited its finding to a
no-solicitation rule that applied outside immediate patient care
areas and was thus subject to a rebuttable presumption. While
the Board in Mt. Clemens General Hospital, supra, seems to
have adopted the Administrative law judge's rationale that the
“special circumstances” rule applied to immediate patient care
areas, this finding was dicta, since the issue before the ALJ was
whether the rule was invalid because it applied beyond imme-
diate patient care areas. I conclude that the rule prohibiting
RNs from wearing the “Saint John’s RNs for Safe Patient Care”
ribbon only in immediate patient care areas was presumptively
valid. Moreover, the absence of complaints from patients or
their families about the ribbons or the lack of inquiry by Re-
spondent into whether the ribbons disturbed patients or their
families is insufficient to overcome the presumption of the
rule’s validity. Sacred Heart Medical Center, 347 NLRB 531,
531–532 (2006), rev. and remanded 526 F.3d 577 (9th Cir.
2008). I will dismiss this allegation.
There is no allegation in the complaint that the ribbon rule
was disparately enforced. However at the hearing, contrary to
Respondent’s assertion that there is no evidence of disparate
enforcement, counsel for the General Counsel adduced evi-
dence, including evidence from Respondent’s vice president for
human resources Sharrer, that Respondent permitted RNs to
wear a wide variety of ribbons and other insignia in immediate
patient care areas of the hospital without restriction. I find the
issue of disparate enforcement of the ribbon rule was both fully
litigated and is closely related to an extant complaint allegation.
Hi-Tech Cable Corp., 318 NLRB 280 (1995).
The record is replete with instances in which Respondent has
permitted its RNs to wear insignia in immediate patient care
areas from 2008–2010 including organ donor badges, cancer
awareness bracelets, diabetes and cancer ribbons, political but-
tons supporting Obama, religious symbols and badges, and St.
John’s issued buttons that said “Saint John’s mission is patient
safe care” and “Just Ask.” Union insignias were also worn in
immediate patient care areas, including CNA badge lanyards
and CNA buttons that said “Respect and Dignity” and “Saint
John’s Nurses–the Heart of Healthcare.”
In Register-Guard, 351 NLRB 1110 (2007), a majority of
Chairman Battista and Members Kirsanow and Schaumber with
Members Liebman and Walsh dissenting reversed a long line of
Board cases dealing with discriminatory enforcement of work
rules. Citing two 7th Circuit decisions30 the Board adopted a
new standard for determining if an employer’s discriminatory
enforcement of work rules violates Section 8(a)(1) of the Act.
The Board held it would no longer be sufficient to show that an
employer merely disparately enforced its rules but it must be
shown that,

. . . unlawful discrimination consists of disparate treatment of
activities or communications of a similar character because of
their union or other Section 7-protected status, and we shall
apply this view in the present case and in future cases.”31

In an attempt to define what constitutes similar activities the
Board elaborated:

For example, an employer clearly would violate the Act if it
permitted employees to use e-mail to solicit for one union but
not another, or if it permitted solicitation by antiunion em-
ployees but not by prounion employees. In either case, the
employer has drawn a line between permitted and prohibited
activities on Section 7 grounds. However, nothing in the Act
prohibits an employer from drawing lines on a non-Section 7
basis. That is, an employer may draw a line between charita-
ble solicitations and noncharitable solicitations, between solic-
itations of a personal nature (e.g., a car for sale) and solicita-
tions for the commercial sale of a product (e.g., Avon prod-

30 349 F.3d 968 (7th Cir. 2003), and 49 F.3d 317 (7th Cir. 1995).
31 351 NLRB at p. 1118.
ST. JOHN’S HEALTH CENTER

2095
ucts), between invitations for an organization and invitations
of a personal nature, between solicitations and mere talk, and
between business-related use and non business-related use.32

Even under a Register-Guard analysis of the ribbon policy,
Respondent has engaged in disparate treatment of activities or
communications of a similar character because of their un-
ion or other Section 7 protected status. Thus, Respondent
has permitted RNs to wear St. John’s issued buttons that said
“Saint John’s mission is patient safe care” and CNA badge
lanyards and CNA buttons that said “Respect and Dignity” and
“Saint John’s Nurses–the Heart of Healthcare.” Clearly, the
ribbon represented a working condition, staffing ratios, that
RNs made part of their organizing campaign. Respondent’s
promulgation of the ribbon rule was motivated by RN’s pro-
tected concerted activity and was a discriminatory application
of a no-solicitation rule in violation of Section 8(a)(1) of the
Act.
4. The enforcement of the rule regarding the
wearing of ribbons
Complaint paragraph 9 alleges that on about November 14,
2008, Zuanic threatened employees with discipline if they wore
ribbons in immediate patient care areas.
Having concluded that the Respondent has applied the rib-
bon rule in a disparate fashion in violation of Section 8(a)(1) of
the Act, it follows that Zuanic’s November 20, 2008 threat to
enforce the rule also violates Section 8(a)(1) of the Act as al-
leged in paragraph 9 of the complaint.
5. The promulgation of new access rules
Complaint paragraphs 10(a) and (b) allege that in about
March 2009 Respondent promulgated and maintained a rule
limiting access of off-duty employees to the hospital to dis-
courage its employees from engaging in protected concerted
activity.
Counsel for the General Counsel contends that Tri-County
Medical Center, Inc., 222 NLRB 1089 (1976), controls this
case and that Respondent enforced its access policy in a dis-
criminatory fashion. Respondent contends that its access policy
meets the Tri County test. Respondent also takes the position
that there is no disparate treatment of activities or communica-
tions of a similar character because of their union or other Sec-
tion 7 protected status under Register-Guard.
In Tri County the Board held that a rule denying off-duty
employees access to the employer’s premises is valid only if:

. . . it (1) limits access solely with respect to the interior of the
plant and other working areas; (2) is clearly disseminated to
all employees; and (3) applies to off-duty employees seeking
access to the plant for any purpose and not just to those em-
ployees engaging in union activity. Finally, except where jus-
tified by business reasons, a rule which denies off-duty em-
ployees entry to parking lots, gates, and other outside non-
working areas will be found invalid.

In this case Respondent maintained a handbook that states the
following:

32 Id. at p. 1118.
The access of employees to the interior of Saint John’s prem-
ises and to working areas of the exterior of the premises while
not on duty shall be permitted only for the purpose of visiting
a patient.

Respondent had a policy, effective June 2003 that dealt with
solicitation and distribution (the old policy). However, the old
policy did not address employee off-duty access.
Respondent’s current Solicitation and Distribution Policy
830.08 became effective January 1, 2009. The current policy
limits off-duty employees access to the interior of the Health
Center’s buildings or to other working areas at the Health Cen-
ter but allows access to the cafeteria and access to the building
to attend Health Center sponsored events, such as retirement
parties and baby showers.
Respondent’s new access policy meets the first prong of the
Tri County test in that it limits access solely with respect to the
interior of the plant and other working areas. However Tri
County also requires that an employer’s access policy is clearly
disseminated to all employees. While the new access policy
became effective January 1, 2009, it was not effectively dis-
seminated to employees until after May 15, 2009. No posting
of the new access policy and no oral communication of the new
policy was disseminated to employees at least until May 15,
2009. It was not until May 21, 2009, that RN Cline received an
email from Respondent regarding Respondent’s new solicita-
tion and distribution policy. While the employer at some point
placed the new policy on its intranet, RNs could not access
Respondent’s intranet from home. Given their busy patient
care responsibilities, expecting RN’s to access the intranet from
work computers and then surf the intranet to find a new access
policy is neither realistic nor effective communication of the
policy to them. I find that prior to May 21, 2009, Respondent
did not fulfill its Tri County obligations and that until that point
its implementation and enforcement of the access rule violated
Section 8(a)(1) of the Act.
6. The enforcement of the new access rules
Complaint paragraph 10(c) alleges that on May 14, 2009,
DeBello and two security guards enforced the new access rule
selectively and disparately against employees who support the
Union or engage in protected concerted activity.
Complaint paragraph 10(d) alleges that on May 15, 2009,
Respondent’s security guards enforced the new access rule
selectively and disparately against employees who support the
Union or engage in protected concerted activity.
General Counsel contends that Respondent’s security guards
were acting as Respondent’s agents when they engaged in en-
forcement of the access rule, created an impression employees’
activities were under surveillance, and threatened employees
with calling the police and arrest.
It must first be determined if Respondent’s security guards
acted as its agents in enforcing the new access policy, in engag-
ing in surveillance, and in threatening to call police and have
RNs arrested for trespass.
The Board has held that an employer may be liable for unfair
labor practices committed by security guards acting in their
official capacity. Opryland Hotel, 323 NLRB 723 fn. 3 (1997);
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2096
Bakersfield Memorial Hospital, 315 NLRB 596 (1994); South-
ern Maryland Hospital Center, 293 NLRB 1209 (1989).
The guards in this case were acting under the direct authority
of Respondent’s vice president for human resources in carrying
out Respondent’s access policy on May 14 and 15, 2009. As
such their actions are attributable to Respondent.
Since I have found the new access policy did not meet the
Tri County test for validity until after May 21, 2009, any en-
forcement of the rule during this period also violated Section
8(a)(1) of the Act.
Thus, the removal of Cline and Wade from the hospital on
May 14 and the removal of Wade from the hospital on May 15,
2009, pursuant to the invalid access policy violated Section
8(a)(1) of the Act as alleged in the complaint.
7. Impression of surveillance
Complaint paragraphs 11 and 13 allege that on May 14 and
15, 2009, Respondent’s security guards created the impression
that employees’ union activities were under surveillance.
In Promedica Health Systems, Inc., 343 NLRB 1351, 1352
(2004), the Board reaffirmed long held Board law that an em-
ployer who creates the impression employees’ protect-
ed/concerted activities are under surveillance violates Section
8(a)(1) of the Act.
The Board’s test for determining if an employer has created
an impression of surveillance is:

. . . whether the employee would reasonably assume from the
statement in question that his union activities had been placed
under surveillance [citation omitted]. U.S. Coachworks, Inc.,
334 NLRB 955, 958 (2001).

In this case on May 14, 2009, two security guards were
called to the nurses’ lounge, a nonworking area, where RNs
Wade and Cline were engaged in union activities on behalf of
CNA. The guards stood in the door of the nurses’ lounge and
remained there after the door was closed. After a period of
time the door was opened and the guards were still there and
insisted that they leave the premises. RN Wade and RN Cline
then left the nurses’ lounge.
On May 15, 2009, RN Cline went to the hospital with Eric
Schmidt to retrieve Cline’s wallet. Cline was off duty. As
Cline was walking through the south entrance of Saint John’s, a
security guard yelled, “Stop, Jack.” The guard also told him,
“No union business.” RN Cline responded, “I’m here to get my
wallet. I have no intention o[f] doing union business.” The
security guard yelled to another security guard and told the
guard, “Follow Jack up there.” During this period, the security
guard followed Cline throughout the hospital.
I find in both instances the guards created the impression or
actually engaged in surveillance of employees’ union activities
in violation of Section 8(a)(1) of the Act as alleged in the com-
plaint. Clearly, on May 14 Cline and Wade were engaged in
union activity and the guards’ continued presence immediately
outside the nurses’ lounge would have led them to reasonably
assume their protected activities were under surveillance. It
has already been established that Respondent’s new no access
policy did not meet the Tri County test. Thus, there was no
legitimate reason for the guards to be present to enforce this
policy.
On May 15, while Cline was not at the hospital to engage in
union activity the guard’s statement to Cline, “Stop, Jack. No
union business,” would have led to a reasonable suspicion that
Respondent thought Cline was engaged in union activity and
following Cline throughout the hospital would have further led
to the impression that his protected activities were under sur-
veillance particularly in view of the lack of notice to employees
of a new no access policy.
8. Threats to call the police
Complaint paragraph 12 alleges that on May 14, 2009, Re-
spondent’s security guards threatened employees with calling
the police and having them arrested for trespassing because
they support the Union or engage in protected-concerted activi-
ty.
The Board has held that threats to call police in the context
of an invalid no solicitation policy violate Section 8(a)(1) of the
Act. Labor Ready, Inc., 327 NLRB 1055, 1057–1058 (1999).
On May 14, 2009, Security guard “Bert” instructed RNs
Wade and Cline that they could be arrested by the police and
charged with trespassing if they did not leave the hospital. As
noted above, there was no legitimate reason for the guards to be
present to enforce Respondent’s new access policy since it did
not meet the Tri County standard. Similarly, the guards had no
legitimate basis to threaten Wade and Cline with arrest by the
police for trespass if they did not leave the hospital. I find that
the guards’ threat to call the police and have Cline and Wade
arrested for trespassing violated Section 8(a)(1) of the Act as
alleged.
CONCLUSIONS OF LAW
On the basis of the above findings of fact and the record as a
whole and Section 10(c) of the Act, I make the following con-
clusions of law.
1. Respondent has been at all times material an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by engag-
ing in the following acts and conduct:
(a) Interrogating employees about their union and other pro-
tected concerted activities.
(b) Threatening employees with discipline for engaging in
union or other protected concerted activities.
(c) Threatening employees with calling the police and having
them arrested for engaging in union or other protected concert-
ed activities.
(d) Creating the impression that employees’ union activities
were under surveillance.
(e) Discriminatorily maintaining and enforcing a no-
solicitation rule prohibiting employees from wearing ribbons
that stated “Saint John’s RNs for Safe Patient Care.”
(f) Promulgating, maintaining, and enforcing a rule which
limits employees’ access to its facility without providing ade-
quate notice of the rule to employees.
ST. JOHN’S HEALTH CENTER

2097
4. The unfair labor practices described above are unfair la-
bor practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent violated the Act as set
forth above, I shall order that it cease and desist there from and
post remedial Board notices addressing the violations found.
[Recommended Order omitted from publication.]